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Premature EEOC guidance takes expansive view of employers’ obligations to provide accommodations to pregnant workers and sets the stage for potential conflict with the U.S. Supreme Court

This week the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance under the Pregnancy Discrimination Act (PDA), the law that prohibits employment discrimination based on pregnancy, childbirth, or related medical conditions. Pregnancy bias has been a known area of focus for the EEOC in recent years, but this guidance represents the first published guidelines on the topic from the Agency since 1983.

The comprehensive guidance covers a variety of issues, including the application of the Americans with Disabilities Act (ADA) to workers with pregnancy-related disabilities. One aspect of the guidance getting considerable attention is the Agency’s expansive view of an employer’s obligation to accommodate pregnant workers. The EEOC has taken the position that under the PDA, employers must accommodate a pregnant employee’s work restrictions if the employer accommodates non-pregnant employees with similar restrictions. Failure to do so will, in the Agency’s view, constitute illegal discrimination.

As an example, some employers only offer light duty work as an accommodation for employees with work-related injuries. This policy is “pregnancy blind” on its face – a worker’s qualification for light duty work turns on the source of her restrictions (work-related injury or not), and not on whether or not she is pregnant. Nonetheless, the EEOC’s new guidance specifically states that employers who offer light duty work to individuals injured on the job must offer light duty work to pregnant employees with work restrictions similar to the former, regardless of the source of the pregnant employees’ restrictions.

This week’s guidance comes less than one month after the United States Supreme Court agreed to hear a case involving the question of whether an employer is required by the PDA to provide pregnant employees with work accommodations if it provides accommodations to non-pregnant employees. The case, Young v. United Parcel Service Inc. (UPS), stems from a challenge from a worker with pregnancy-related lifting restrictions who claimed she had to take unpaid leave when UPS failed to grant her light duty work, even though UPS gave light duty work to non-pregnant employees with limitations similar to her. UPS argued that it only offered light duty work to employees hurt on the job or who qualified for accommodations under the ADA. Since Ms. Young did not fall into either category, UPS said it was not required to accommodate her. The trial court and Fourth Circuit sided with UPS, holding that so long as a policy treats pregnant workers and non-pregnant workers alike, the PDA is satisfied.

The Supreme Court could render the EEOC’s new guidance moot if the Court sides with the Fourth Circuit, as the Court’s word will control over the Agency’s guidelines. Employers will certainly be watching closely for the Court’s decision in Young. In the interim, employers should proceed with caution in evaluating their obligation to provide accommodations to workers with pregnancy-related limitations, given the EEOC’s decision to issue its guidance before the Supreme Court has spoken on the issue. This state of uncertainty comes at a time when the number of pregnancy discrimination complaints is rising. The number of such complaints to both the EEOC and state and local agencies has risen by thirty-seven percent between 1997 and 2013.